Study of Board of Immigration Appeals Procedural Reforms - ILW.com

decision below and “shall not include further explanation or reasoning.” 95 While such an order
“does not necessarily imply approval of all of the reasoning of that decision, but does signify the
Board’s conclusion that any errors in the decision of the immigration judge or the Service were
harmless or nonmaterial.” 96 If the BIA member to whom an appeal is assigned determines that
affirmance without opinion is not appropriate, the BIA member “shall issue a brief order
affirming, reversing, modifying, or remanding the decision under review, unless the Board
member designates the case for decision by a three-member panel.” 97
Reduction of Size of Board of Immigration Appeals
As noted above, prior to the “Procedural Reforms” the BIA had attempted to address the
“mounting backlog of cases” by increasing the number of permanent Board Members on several
occasions – from five permanent positions to twelve in 1995, with further incremental increases
to a total of twenty-three permanent positions in 2002. 98 Significant staff increases accompanied
the expansion of the BIA.
In promulgating the “Procedural Reforms,” the EOIR noted that the addition of new BIA
members had not “appreciably reduced the backlog of cases.” 99 The “Procedural Reforms”
reduced the number of BIA positions to eleven. 100
Case Management Procedures
The “Procedural Reforms” require the Chairman to establish a case management system
for the expeditious resolution of all appeals. 101 The most significant modification of case
management procedures is the imposition of a series of time limits geared toward expediting the
adjudication process. 102
The “Procedural Reforms” shorten the briefing calendar from thirty days to twenty-one
days. 103 Appeals involving aliens who are not detained follow a sequential briefing schedule, as
before, but appeals involving detained aliens are now to be briefed concurrently, and reply briefs
are only permitted by leave of the BIA. 104 The BIA may, upon written motion and for good
95 Id.
96 Id.
97 8 C.F.R. § 3.1(e)(5) (2003).
98 Final Rule, supra note 40, at 54878. Note that at the time the “Procedural Reforms” were proposed and enacted, four of these twenty-three
positions were vacant. Id.
99 Proposed Rule, supra note 68, at 7310.
100 8 C.F.R. § 3.1(a)(1) (2003); see also Final Rule, supra note 40, at 54879. Five BIA members were reassigned to positions within the EOIR.
See AILA InfoNet Doc. No. 03042443 (Apr. 24, 2003) at http://www.aila.org. Three others voluntarily departed.
101 In addition, jurisdiction over appeals of Service decisions imposing administrative fines are transferred to the Office of the Chief
Administrative Hearing Officer.
102 In addition to the time limits imposed upon the BIA, the “Procedural Reforms” also impose timeliness requirements upon the Immigration
Judge’s review and approval of the hearing transcript. 8 C.F.R. § 3.5(a) (2003).
103 8 C.F.R. § 3.3(c) (2003).
104 Id.
24